Unpublished Dispositionperry Du. Wayne Caudle, Petitioner-appellant, v. United States of America, Respondent-appellee, 925 F.2d 1462 (6th Cir. 1991)

M.D. Tenn.

AFFIRMED.

Before NATHANIEL R. JONES and DAVID A. NELSON, Circuit Judges, and JOINER, Senior District Judge.^* 

ORDER

Perry Du. Wayne Caudle appeals from the district court's order denying his motion to vacate sentence filed under 28 U.S.C. § 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Caudle was convicted by a jury on September 1, 1985, on eight counts relating to an armed bank robbery in June of 1985. On appeal, five of the counts were vacated, and Caudle was thereafter resentenced in regard to the three remaining counts which had been affirmed on appeal.

In his present motion to vacate his sentence, filed on February 6, 1990, the petitioner alleged: 1) the district court erred by allowing evidence to be introduced by the prosecution at his resentencing hearing in regard to statements made by a codefendant (Montgomery) and another associate (Henderson), without affording the petitioner an opportunity to confront his accusers under the Sixth Amendment; and 2) he was denied effective assistance at resentencing when his counsel failed to object to the introduction of the evidence described in his first allegation. Caudle also requests appointment of counsel on appeal.

Upon review, we conclude that the district court properly denied the petitioner's motion for the reasons stated by that court. Caudle has not shown that the sentencing court relied on false information or erroneous factors in passing sentence or that the judge failed to evaluate all sentencing information submitted to him. United States v. Stevens, 851 F.2d 140, 143 (6th Cir. 1988); United States v. Barbara, 683 F.2d 164, 166 (6th Cir. 1982). Likewise Caudle's allegations that his counsel's performance was deficient is not supported by the record. Therefore, the petitioner has not met his burden of proving that any deficient performance prejudiced his defense so as to render the proceedings unfair and the result unreliable. Strickland v. Washington, 466 U.S. 668, 687 (1984).

Accordingly, the district court's order denying the motion to vacate sentence is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.